The Lone Star state’s alarming new omnibus bill bans D&E, even in cases of sexual assault. If it's deemed "constitutional" by the conservative Fifth Circuit—then on we go to the Supreme Court.
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Imagine a young woman in Lubbock, Texas, home for the summer before her senior year of college. She has just missed her period, she’s certain she’s pregnant. She wants to finish school and start her career, but she’s working the summer for her final year’s tuition and housing costs. She has to drive hours to Fort Worth for an abortion, and she can’t miss too much work—the abortion itself will already take a huge bite out of her summer earnings. She needs to wait at least two pay periods to have the funds, and another week or two to get a few consecutive days off work.
Or imagine a 17-year-old girl from Fort Worth, just realizing she is pregnant. She is afraid to let her family know. Her parents are already emotionally—sometimes physically—abusive. They wouldn’t want her to have a baby, but they definitely would make her life hell for getting pregnant in the first place. But in two months she’ll be 18, old enough to get an abortion without their permission or knowledge, and she has the money. She just needs to wait a little longer.
Or how about a new mother in Austin with a thriving 6-month-old. She was nursing, and she assumed that’s why she wasn’t menstruating. She was sleep-deprived and thought surely that’s why she was tired and sick. Now the doctor tells her she’s almost 15 weeks along. Her parental leave is almost over. How can she go back and say she’s pregnant again? Besides, she and her husband only wanted one child, and she still hasn’t recovered from her first pregnancy. No one wants to do this again.
Or perhaps a mother to be in Shreveport, Louisiana, who just had an early ultrasound that showed the baby wasn’t developing as expected. She still has a month until the 20-week gestational limit in Louisiana, but the last remaining clinic on her side of the state only performs abortions up to 14 weeks. Her closest option after that is in Dallas, and she doesn’t want to be rushed into a decision about whether to end it now or wait to see if a later ultrasound offers a better prognosis.
Today, each one of these people could probably get an abortion in Texas. But thanks to the Texas legislature, that may not be true for much longer.
When Texas passed its massive anti-abortion omnibus bill in 2013, one section that was never challenged in the courts was a ban on all abortions in the state after 20 weeks (22 weeks gestation). The lack of a challenge was deliberate—no one was certain whether Justice Anthony Kennedy would rule in favor of the restriction, despite it being a deliberate attempt to ban abortion prior to the point of viability, the mainstay of the Roe v. Wade decision. Rather than risk that a Supreme Court challenge could open the door for a 20-week ban across the country, the idea was to leave that restriction out of the lawsuit, keeping the ban contained for the time being.
But now, less than four years later, Texas is back with another alarming omnibus bill heading to the governor’s desk for signature, and this one may be impossible for abortion-rights legal teams to ignore. SB8 began as a bill requiring burial or cremation for fetal remains. With the insert of a series of amendments, however, the bill now also bans fetal-tissue donation, any performance of D&X (what was dubbed “partial birth abortion” by abortion opponents, and is already illegal federally), and a ban on D&E abortions with no exception for sexual assault.
D&E (dilation and evacuation) abortion bans have been popular among anti-abortion lawmakers in the last two years, but not so much with courts. Kansas, Oklahoma, and Louisiana have all proposed and passed this ban, which makes it almost impossible to perform an abortion after 14 weeks—and in each state, the courts have blocked the ban’s enforcement.
Texas could very well be different.
As possibly the most conservative court circuit in the nation, the Fifth Circuit is notorious for finding no abortion restriction unconstitutional. It was under their ruling that Texas was initially told it could close all but nine clinics for the entirety of the state—that’s more than 5 million women of reproductive age. Now there is a very strong possibility that this ban on almost all abortions after the first trimester will be heading to their bench. The odds that the Fifth would find such a restriction unconstitutional is dismally low.
The question then becomes another game of “What would the Supreme Court do?” Abortion opponents are utterly frank in their admission that the ban on D&E abortions is specifically tailored to encourage Justice Anthony Kennedy to side with them. Rather than a complete blanket ban on all abortions after the first trimester, the ban instead outlaws D&E, the procedure most commonly used at that point.
We know how eight of the nine justices on the court would likely rule on this hair-splitting—including Antonin Scalia’s replacement Justice Neil Gorsuch. As always, it is Kennedy who is the wild card, and if rumors are true he may not even be on the bench if a challenge before the Supreme Court. And unfortunately any replacement justice nominated from GOP President Donald Trump’s shortlist is probably going to say a D&E ban is just a good first step toward making abortion illegal altogether.
With SB8 waiting for the governor’s signature, we are right back where we were in 2013 regarding “Do you or don’t you?” on abortion-ban challenges. The decision not to challenge the 20-week ban was about weighing the impact that shortening the gestational timeframe for an abortion by a few weeks would have against the potential consequences of setting a precedent that could overturn Roe. Now, less that four years later, we are right back there again, but this time the stakes are even higher.
Today Texas is already down to about 20 abortion clinics and patients are having abortions even later in their pregnancies than before. The time to book an appointment due to clinic overcrowding, the need to find financing for the termination and the mandatory waiting periods all have all lead to an increase in second trimester procedures—by 27 percent in just the first year after HB2 became law. Now that first trimester abortions are that much harder to access, of course the next logical step was making second trimester abortions almost impossible to obtain, and the squeeze of losing those extra six to eight weeks to legally end a pregnancy will force thousands of people to give birth or find an illegal way to abort.
It’s a horrifying prospect, but so is the idea of a D&E ban being found constitutional by the highest court in the land, thereby opening the door for every red state to enact their own similar law or appeal the rulings that already blocked the restriction in Kansas, Oklahoma, and Louisiana. Or in an even worse scenario it could pave the way for a federal D&E ban, or even offer the court the chance to review Roe all together, and potentially send the abortion decision back to the states to decide.
We are clearly being painted into a corner when it comes to the fight to keep abortion legal. Refuse to challenge what is essentially a second trimester ban and watch thousands of patients lose access to abortion simply because the clock ran out on them. Challenge the ban, and risk opening up even more of the nation to the same onerous gestational restrictions—or worse. Sadly, in either scenario, you can be sure that it is those who are unable to get an abortion in the first trimester who will bear the burnt of the costs, and never the politicians who have forced them into it.